Mateo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 391

Mateo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 391 (24 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10128
Re:Iliavi Mateo
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr N A Manetta
Date:24 February 2023
Date of written reasons: 15 March 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the Applicant’s visa be revoked.
.................[sgnd].......................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not satisfy character test – whether another reason for cancellation decision to be revoked – Direction No. 90 – frequent offending –– alcohol misuse – potentially serious risk to the Australian community if applicant reoffends while drunk – family violence but none directed to the partner’s person – low risk of reoffending – links to Australian community – best interests of applicant’s three Australian children – impact of removal on applicant’s fiancée – decision under review set aside and cancellation decision revoked
LEGISLATION
Migration Act 1958 (Cth)
CASES
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Senior Member Dr N A Manetta
15 March 2023

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with minor amendments.
[1] These reasons contain certain standard paragraphs; in particular [5] and [31].
This is an application by Mr Iliavi Mateo seeking a review of a decision of the respondent’s delegate dated 8 December 2022. By this decision, the delegate declined to set aside an earlier decision taken in the respondent’s Department to cancel Mr Mateo’s Class BS Subclass 801 Partner visa. This earlier decision was taken after Mr Mateo was sentenced to a term of imprisonment of 15 months, part of which he was required to serve on a full-time basis in gaol. In these circumstances, the delegate formed the view, and correctly so, that Mr Mateo’s visa was required to be cancelled under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).
Mr Mateo made a timely application for review. The delegate tasked with the consideration of that application was required to address up to two questions under section 501CA(4)(b) of the Act. The first question was whether Mr Mateo passed the so-called ‘character test’ under section 501(6). If the answer to that question was ‘no’, a second question arose, and that question was whether there was ‘another reason’ for the cancellation decision to be revoked. In respect of this latter question, the delegate was required to apply Direction no. 90 issued under section 499 of the Act (‘the Direction”).[2]
[2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
The internal-review delegate answered the two questions I have identified as follows: first, the applicant did not satisfy the character test; and, secondly, having weighed the various considerations required to be considered under the Direction, the delegate found that there was not ‘another reason’ for the visa cancellation to be revoked. The delegate formally declined, therefore, to set aside the cancellation decision. I would note here that the delegate clearly answered the first question correctly: given his 15-month sentence of imprisonment, Mr Mateo could not pass the character test.
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence adduced before me, I must address the same two questions. I have already indicated, however, that the delegate’s conclusion in respect of the first question was correct. Only the answer to the second question was in dispute before me. In matters like this, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[3] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
[3] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [98] and [141].
At the hearing, the applicant represented himself; Mr Duldig represented the respondent. I acknowledge expressly Mr Duldig’s measured advocacy and assistance to the Tribunal in this matter, which reflected well the respondent’s model-litigant obligations.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Mateo’s visa be revoked. I now turn to set out the background facts and
to explain my reasons for this conclusion.
BACKGROUND FACTS
Mr Mateo gave evidence before me and I largely accept it. He was born in Fiji on 28 January 1986. He was, therefore, 37 years of age at the time of the hearing before me. He is the eldest of four siblings. He has a sister who now lives in Fiji, a sister now living on Hayman Island, and a brother on the Gold Coast, Queensland.
Mr Mateo’s childhood in Fiji was marked by considerable disturbance. His father drank too much and there was a significant degree of domestic violence. He said that he was managing the house from Year 7 onwards.
His father moved to Australia in 2008, leaving the family behind. In 2009, Mr Mateo’s mother died, and in the following year, Mr Mateo’s father arranged for the children to come to Australia. They arrived in Australia in April 2010, when Mr Mateo was 24.
Mr Mateo gave evidence that the father’s plan was that they should all settle in a family home in Australia. This changed, he said, in about October 2010. Mr Mateo’s father had met a new partner, and she wanted the children to leave the Brisbane family home. Mr Mateo had a heated argument with her, and he left Brisbane for Mackay in 2011. He lived with an uncle there and earned his living as a road-construction worker. He was mainly involved in line-marking. The work was new to him and it was physically demanding, but he enjoyed it, he said. It lasted some four to five years. During this time, Mr Mateo lived with his uncle.
In due course Mr Mateo’s father married his new partner. By that time Mr Mateo had reconciled with his father and was in fact his father’s best man.
Returning now to Mr Mateo’s work history, I note that Mr Mateo gave evidence that he lost his job in Mackay in 2015 or 2016. He eventually found a job involving the same sort of work; namely line-marking and sign-installation. It was a well-paid position with many fringe benefits, he said. He enjoyed this work very much.
Mr Mateo held this job for a number of years. Eventually it came to an end, as I understand matters, when he was gaoled. He then worked in a Mackay meatworks for some six months. At this time, he was heavily abusing alcohol and cannabis.
I turn now to describe aspects of Mr Mateo’s personal life. When he moved to Mackay, he met a woman called Angela. They became a couple and had three children together. She already had a child from a previous relationship, who is now an adult. The three children were born in 2013, 2015, and 2017, and they are, as at the date of my decision today, nine, seven, and five years of age respectively.
Mr Mateo gave evidence that when he first met Angela, she was drinking regularly. He began to drink with her. He said that after the birth of their first child in 2013, there was a lot of tension between them stemming from her depression. He accepted in his evidence that he had been a regular, but not heavy, drinker before meeting Angela. He blamed his increased drinking on her bad influence in this regard.
I doubt this version of events, or, at least, I believe Mr Mateo has limited insight. Mr Mateo was free to decide for himself how much alcohol he could prudently consume. It is certainly a fact that Mr Mateo began to drink very heavily at this point of his life. In fact, he said he was drinking up to a bottle of spirits per night: whatever was cheapest and strongest, he said. It is also clear on the evidence before me that Mr Mateo’s frequent offending, to which I shall refer shortly, is strongly related to his abuse of alcohol.
Mr Mateo’s criminal record was before me.[4] His earliest offence, before the Mackay Magistrates Court, involved urinating in a public place. A $100-fine was imposed, but no conviction was recorded. The date of the sentence is 10 April 2012. On 20 August 2015, Mr Mateo was found guilty of wilful damage. No conviction was recorded, but he was fined $400 on that occasion. These offences are somewhat old now, and the fact that no conviction was recorded clearly indicates their relative lack of seriousness.
[4] Exhibit R1, 27ff.
The first offence where a conviction is recorded dates from 2014. It consists of an unauthorised dealing with shop goods. I accept Mr Mateo’s description of the offending. He had been out in the evening and had drunk very heavily. He and a friend pulled up at a service station, but the attendant refused to serve them because of their intoxication. He knocked some goods over (because of his intoxicated state) and also broke some glass. A conviction was recorded, and a fine of $300 was imposed.
On 17 March 2016, Mr Mateo was charged with assaulting or obstructing a police officer. I accept his evidence that he had tried to help a friend escape a nightclub brawl and had himself become involved in the melee. Mr Mateo was drunk at the time. A conviction was recorded and a fine of $400 was imposed.
At this juncture I should note that in 2016, or thereabouts, a domestic violence order was taken out against Mr Mateo following a very loud argument between Mr Mateo and his partner at their home. Under the terms of the order, he was not to be present at his partner’s home, except with her written consent. On 19 March 2016, he breached the order by attending the premises without written permission. No conviction was recorded, but a fine of $500 was imposed. Repeated breaches of the order would follow over the years. On 17 August 2016 there was a breach-of-bail offence, but again this did not result in a conviction, although a fine of $450 was imposed.
On 21 September 2016, a number of charges were laid against Mr Mateo involving a breach of his bail conditions and assaulting or obstructing an officer on licensed premises. An aggregate fine of $750 was imposed, but no conviction was recorded in relation to any of the charges. Mr Mateo indicated in cross-examination that he was very drunk at this time.
On 17 November 2016, Mr Mateo was convicted of a number of offences. Two offences involved breaches of the domestic violence order on 22 October 2016. These were aggravated offences. A conviction was recorded and a probation period of nine months was ordered. That marks an important increase in the severity of the sentences Mr Mateo had been receiving. There was a further conviction with no further punishment in respect of contravening a direction or requirement on 5 November 2016.
On 6 February 2018, there was a further conviction for a contravention of the domestic violence order. On this occasion a conviction was recorded and a fine of $1500 was imposed. On 1 March 2018, there was a fine imposed in respect of wilful damage and committing a public nuisance, but no conviction was recorded.
I shall not detail the next seven court appearances in the record, which involved, in the main, contraventions of the domestic violence order. These are all serious offences. At this point Mr Mateo entered the prison system. That is a very important matter. He had been given suspended sentences in the past but continued to breach the order. This led to the suspension being revoked in favour of time spent in custody.
I should say at this point that on the evidence before me, the breaches of the domestic violence order did not apparently involve any actual violence directed to the person of his former partner. Mr Mateo was drunk on each occasion, however. In addition, there was some damage to property (the theft of a phone and damage to a letterbox and chattels in the house); but, in fairness, it must also be noted that there is no evidence of physical violence directed towards his former partner’s person. Some reports also seem to suggest that the former partner had invited Mr Mateo to stay with her for some period of time after his lease had expired. At that stage of their relationship, they were not completely estranged. Nevertheless, I do not doubt that the property damage and Mr Mateo’s general demeanour would have been confronting enough.
All in all, the breaches of the domestic violence orders involve serious matters. I am also satisfied that the breaches were all associated with a serious misuse of alcohol.
On 4 February 2022, Mr Mateo was convicted of an offence that took place on 17 November 2019. He was once again very drunk and had happened to glimpse at a nightclub a woman he had once met (via a dating app). He knew where she lived and he later attended her address. He did not knock, but entered her house without permission and entered a bedroom, in fact, which he mistook for her bedroom. He gave evidence that he touched the leg of a person lying in bed, thinking it was the woman’s, but in fact it was her daughter who was lying in the bed. When he realised his mistake, he withdrew. The victim, who was a minor, must have been extremely frightened. Mr Mateo was sentenced to 15 months’ imprisonment in respect of this offending. At the time of his sentencing he had already spent 65 days in custody and this was taken into account. He was given a release date of 4 April 2022, meaning that he was required to serve a further four months of the 15-month sentence before being eligible for parole. Mr Mateo’s visa was cancelled during this time and he was taken into immigration detention once released on parole.
I am satisfied on the evidence before me that although the incident in question occurred in 2019 and only came before the Court in 2022, there was no attempt by Mr Mateo to avoid service of the proceedings.
Finally, I note that in 2021 Mr Mateo met his most recent partner and now fiancée, Ms Morrell. That relationship began before Mr Mateo was gaoled in respect of the offending to which I have just referred. I am satisfied that their relationship is genuine.
REASONS
With that summary of the facts in mind, I now turn to consider the Direction. The express purpose of the Direction is the guidance of decision-makers in performing their functions under the Act: see paragraph 5.1(4). I frequently refer to certain earlier remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at [32]ff. I usually set these paragraphs out, and I do so again here:
32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).
33. I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.
34. First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.
35. I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.
36. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.
I further note that the decision-maker is directed by paragraph 5.1(3) of the Direction to consider the specific circumstances of the case when considering whether to exercise the power to revoke the cancellation decision.
I now turn to apply the substance of the Direction. The first primary consideration I must consider is the protection of the Australian community from criminal or other serious conduct. I will not recapitulate subparagraph (1) of paragraph 8.1 but I bear its contents in mind.
I note that under subparagraph (2), I am to give consideration to two matters; namely, the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should the applicant commit further offences. In assessing the nature and seriousness of the applicant’s conduct to date, I am to have regard to a number of matters specified in subparagraphs (a) to (g) of paragraph 8.1.1(1).

The applicant’s offending involves violent crimes. I have already pointed out that there was no physical violence extended to the person of the applicant’s former partner, but the persistent attendance by him at her premises when he was intoxicated may well have intimidated her and inspired fear, and I regard that sort of crime as akin to a violent crime, even though physical force did not feature as such. I also regard the damage done to property as a violent crime when witnessed by others, particularly women or children. In this case, there were also acts of family violence involving arguments and property damage. These are matters to be taken very seriously.
The crime against the daughter of Mr Mateo’s casual partner, whom he mistakenly believed to be his partner, is difficult to analyse. My view is that it should also be regarded as a crime of violence given the fear he inspired. It is true that Mr Mateo did not intend to cause fear, but the reality is that he did so. Had he been sober, he would not have entered the premises in question. Moreover, the fact that Mr Mateo mistook the identity of the person whose leg he touched is irrelevant. His former casual partner would have been equally shocked to find Mr Mateo in her bedroom. I think this is a case of a violent crime – in the sense of one inspiring fear – involving a child, despite the lack of any explicit intention to intimidate the victim.
I further note that there have been instances of assaults upon police officers and other general offending which has been strongly antisocial.
I have had regard to the sentences imposed by the courts, but I note that in respect of violent crimes against women or children or acts of family violence, paragraph 8.1.1(1)(c) of the Direction requires me to regard the offending as very serious irrespective of the sentence imposed.
There has certainly been a frequency in Mr Mateo’s offending, and there has also been a clear trend of increasing seriousness given the most recent offending which involved the unauthorised entry into a community member’s house. There have been repeated suspended sentences, and there was a period of time spent in gaol before the unlawful entry into the former casual partner’s home. Drunkenness was clearly a problem for Mr Mateo at the time, and it led him repeatedly to commit unlawful acts. There is a cumulative effect of repeated offending, particularly in the family-violence context, and I take that into account.
I must have regard to the risk of reoffending. I bear in mind the principle that appears in paragraph 8.1.2 (1) of the Direction. I need not set it out.
I must have regard to the nature of harm to individuals or the Australian community should Mr Mateo engage in further criminal or other serious conduct, and, ‘cumulatively’, the risk of his engaging in that conduct. Here, I think it is right to emphasise that Mr Mateo may well commit unpredictable acts of violence when he is drunk. When intoxicated, he has been involved in resisting arrest, some property damage at his former partner’s home and in a service station, and unlawful entry to premises. Depending on the situation, unpredictable violence could well arise. Accordingly, I regard the risk to the Australian community as quite serious. I also regard the unwanted attendance by Mr Mateo at his former partner’s premises as a very serious matter since an unwanted attendance can be intimidating in its own right.
I do believe that the risk of Mr Mateo engaging in the conduct in the future is low, however. First, I accept his submission that since November 2019 there is no recorded instance of an offence having taken place. This last offence was only dealt with in court in February 2022. So it is true to say that Mr Mateo has lived a period of time in the community in relatively recent times where he has not committed any offences. Secondly, I accept that Mr Mateo has not drunk since his arrest in late 2021. I accept his evidence that he has not drunk in gaol or in immigration detention. As at the time of my decision, Mr Mateo has not drunk for some 14 to 15 months. That is a positive sign. Moreover, I genuinely believe that Mr Mateo wishes to rebuild his life and be an effective father to his children. He also wishes to build a life with his new partner. I accept that he may not end up with a particularly positive relationship with his former partner and children, but at the present time the possibility of a good relationship cannot be said to be excluded. This prospect is a very powerful motivation for him to maintain a positive and balanced life free of alcohol. I also accept that his fiancée has no tolerance for alcohol and so she will not accept any substantial deviation from him. That will be a positive protective factor. There is also the very realistic possibility that Mr Mateo will find employment again with the assistance of his brother, and that his brother will also be a balanced and beneficial influence upon him.
I do acknowledge that a longstanding drinking habit is difficult to eradicate. There are usually complex psychological factors at play. It is not simply a matter of a person resolving not to drink. But the initial and difficult phase of first ceasing to drink has now passed in this case. With far clearer thinking, Mr Mateo can now concentrate on better life choices and on addressing, with the help of his partner, the challenges he will face as a person recovering from a destructive habit. I should also add here that I believe that the effect of immigration detention in particular has brought home to Mr Mateo how precarious his situation has become, and that he is not likely to be given a second opportunity to stay in Australia (if the decision against him is set aside on this occasion, but he goes on to reoffend in the community). He has been in detention of one form or another since November 2021, or thereabouts, and that is a considerable period of time. It represents the first extended period of detention for Mr Mateo, and, as I say, the prospect of his being forcibly removed to Fiji could hardly have been made clearer to him, now that he finds himself in immigration detention.
I must take into account family violence. I acknowledge what appears in paragraph 8.2(1) of the Direction. In assessing the family violence in this case, I accept that there has been a frequency in Mr Mateo’s misconduct. There has probably not been a trend of increasing seriousness in the conduct itself, but there is no doubt that it has occurred in circumstances where there have been repeated warnings issued by courts in relation to his uninvited attendance at his former partner’s premises. From this it follows that the later breaches of domestic violence orders should be regarded as more serious because of the added feature of defiance. I am not sure that Mr Mateo accepts responsibility for the family violence-related conduct, and I doubt that he understands the impact of his behaviour on the victim and witnesses of the abuse, particularly children. I do believe he is contrite, but some of his evidence appeared to blame his former partner for his conduct. It was always his decision to drink, and it was also his decision to attend the premises in question without written permission. No doubt the courts advised Mr Mateo formally on a number of occasions of the consequences of a continued breach of the domestic violence order. He continued to breach the order, nevertheless. I do accept, however, that he has made some effort to address the factors which contributed to his conduct and, in particular, he has ceased drinking despite its illicit availability to him in gaol and immigration detention. I believe also that he has established a productive relationship with his new partner. She does not tolerate alcohol and that they have resolved to address his alcohol-abuse problems.
I must address the best interests of minor children in Australia. Mr Mateo has three children of his own in Australia. I accept that he would be in a better position to provide for them financially from Australia than from Fiji. I believe that this is a significant factor. I accept that there has been at least some positive text-messaging between Mr Mateo and his former partner in relation to the personal circumstances of their child who has been misbehaving badly.[5] I also accept that Mr Mateo’s new partner may well assist in a reconciliation and assist Mr Mateo to develop a fully functioning relationship as a father to his three children. I do believe that if Mr Mateo were to return to alcohol abuse, it would be better if one-on-one contact were terminated now through Mr Mateo’s departure to Fiji. I am particularly conscious of the difficulties children face from continued disruption in their lives. Nevertheless, the involvement of both biological parents in the raising of children, even when there is a good substitute for an absent biological parent, is preferable in my opinion. Children isolated from their biological mother or father can suffer psychologically and frequently do so grievously. They are very often the unfortunate victims of the decisions made by one or other parent and the resulting dysfunction in family life.
[5] Exhibit R1, 68ff.
I believe it is in the interests of the three biological children to have contact with Mr Mateo. Of course, the extent of that contact would have to be negotiated with his former partner but there is at least a reasonable prospect of that occurring.
I do accept, however, that Mr Mateo has largely been an absent figure in his children’s lives, and an intermittently drunken figure when he has been present. The domestic violence order taken out against him was designed to prevent his presence at the family premises when he was disorderly. I bear that in mind.
All that said, however, I believe that the interests of the children do favour revocation of the cancellation decision.
The expectations of the community are a further matter I must take into account in accordance with paragraph 8.4 of the Direction. I do so. I note that as a norm ‒ although not as an inflexible rule ‒ the expectation here is that Mr Mateo should not remain in Australia. I also accept that acts of family violence and the commission of serious crimes against children (as occurred when Mr Mateo unlawfully entered domestic premises) are specifically mentioned as types of conduct that give rise to serious character concerns that would normally warrant removal from Australia: see subparagraph (2). I acknowledge that the expectations of the Australian community apply regardless of whether Mr Mateo poses a measurable risk of causing physical harm in the future, and I further note that I am not to assess the community’s expectations for myself as they may apply in a particular case, but take them as given in the paragraph. These considerations count against Mr Mateo.
I must also consider the so-called ‘other’ considerations under paragraph 9 of the Direction. These include but are not limited to the four considerations set out in paragraph 9(1).
I do not believe that there would be any major impediments on removal. I accept that Mr Mateo has not lived in Fiji for some time but he is completely familiar with Fijian culture. He has good transferable work skills. There are no international non-refoulement obligations to consider. I am not aware of any adverse impact my decision to set aside the decision under review would have for victims.
This leaves Mr Mateo’s links to the Australian community. I accept that Mr Mateo first began offending, albeit in a minor way, in 2012, not long after his arrival in Australia in 2010, approximately 12 to 13 years ago. Nevertheless, I believe I should attach some weight to Mr Mateo’s own interest in supporting his children and developing a positive relationship with them. I believe his commitment to his children is genuine at this point of his life, and there is a realistic prospect of his making a meaningful contribution to their welfare now that his drinking has stopped. I believe he is genuinely committed to his relationship with Ms Morrell, which developed in 2021. I believe that she, too, has an interest in the relationship as his fiancée. I believe she would be greatly affected if he were to leave.
WEIGHING THE CONSIDERATIONS
I turn now to weigh the various considerations. This is never an easy task. I accept that Mr Mateo’s offending has been strongly antisocial. It has included family violence, and the Direction gives a greater emphasis to this factor than its predecessor, Direction 79. The community-expectations consideration clearly weighs against Mr Mateo. His offending has always involved alcohol abuse. That is an important factor because alcohol leads to disinhibited and unregulated conduct that can affect the community grievously. But the risk in this case of a return to alcohol abuse is low, in my assessment, although I note that it is a matter to which I am to have regard ‘cumulatively’ together with the nature and seriousness of harm.
There are cautious grounds for optimism in Mr Mateo’s present circumstances, which include a new, positive relationship with a settled, balanced and financially independent fiancée who will assist him to develop appropriate prosocial habits and a constructive relationship with his children. The interests of the children count substantially, and Mr Mateo is likely to be able to support them better financially from Australia. This is an important factor in its own right.
CONCLUSION AND DECISION
All in all, I have decided that, on balance, the correct or preferable decision on the evidence before me is to revoke the cancellation decision. That is very much a decision on balance. Returning now to the language used in section 501CA(4)(b)(ii) of the Act, I find that there is ‘another reason’ for the cancellation decision to be revoked.
Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of Mr Mateo’s visa be revoked.
I certify that the preceding fifty-six (56)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
…[sgnd]……………………………..
Associate
Dated: 15 March 2023
Date of hearing:  7 & 8 February 2023
Advocate for the Applicant:      Self-represented
Advocate for the Respondent:  I Duldig
Clayton Utz